Deconstructing What Happens in Law

January 27, 2015

Is it really all that easy and excusable to borrow someone's intellectual property and not realize we are doing so?

Maybe that's the new party line to defend the growing practice of sucking up memes, word coinages, sentences, paragraphs and music lyrics and not attributing them to the source.

In New York Magazine, Melissa Dahl presents that defense by Adam Grant, professor of management at the University of Pennsylvania's Wharton's School. He has labeled this behavior "kleptomnesia." And he acknowledges the coinage was first put out there by Harvard psychologist Dan Gilbert.

But to me, a former contract employee in loss prevention, this sounds like the petty thieves attempting to leave the store with merchandise they didn't pay for. Most acted shocked when apprehended. The generic statement was that they had mindlessly picked up the item, placed in a pocket or purse and simply forgot doing so. Clearly, this was no Nancy Drew mystery that I had to solve. It was arrogance, poorly masked as forgetfulness.

Perhaps then, I am jaded. Also, I am a crusader to expose and end theft of ideas and content. For example, a high-traffic tax blog reprinted content from this site and others such as Abovethelaw.com without attribution. Among its advertisers was The Economist. I notifed those advertisers.

Very quickly the tax blog posted the source for each post. Of course, I felt a sense of victory. No one should accept what is stealing. Everyone should take action. Rarely are careers ruined when the miscreants are uncovered. But I really don't care. Laboring in the trenches of loss prevention hardens us regarding the foibles of mankind.

January 13, 2015

When celebrity Manhattan lawyer Allen Grubman graduated from Brooklyn Law School, he was No. 1. That is, No. 1 from the bottom. That's what he exhuberantly informs Vanity Fair writer John Heilpern for the February 2015 issue. He also boasts that "success in business is 75 percent luck." Here you can read that interview.

The whole interview, of course, is performance art. Grubman plays to his audience of 1, who then plays it out for millions of readers. That's probably the real secret to 75 percent of Grubman's success: Understanding how to put on the right kind of show for each audience. Heilpern catches and transmits each vibe. Grubman's special niche is music law.

Not that most lawyers don't know how important staging is in just about every aspect of legal work. That ranges from developing new business to handling negotiations to doing actual trial work.

But since it takes such cognitive brilliance to get into and through an elite law school, some lawyers default to leveraging raw intelligence. The worst version of that is when they accompany it with a monkish way of going about their work. When time comes as a senior associate to bring in business, they lack the rainmaking skills.

A shrewd law school dean would invite Grubman to give a seminar to 3Ls and alumni in Stagecrafting of The Self.

January 02, 2015

This coming Tuesday there will be a funeral mass at the Church of St. Ignatius of Loyola in Manhattan. The life and times of Mario Cuomo will be celebrated.

Those who loved him will, as at Ted Kennedy's funeral mass, share intimacies about their experiences with the man. The eulogies of sons Ted and Patrick are imprinted with other paraphernalia in the Kennedy legacy.

Many others, though, will be attending as part of the standard political ritual deconstructed in "This Town" by Mark Leibovich. That description resonated so much so that the book retains a high ranking on Amazon: 18,281.

Funerals, from ancient times, have been where power can be cemented. Remember in Shakespeare's "Julius Caesar," a mourner declares he is there to praise Caesar, not bury him.

Therefore, it will be telling to observe what lawyers are at Mario Cuomo's funeral. What has been their role in the political dance and how does the future look to be for them? Is politics simply useful for business or do they take it seriously? For how many will this be their last association with power?

December 30, 2014

A brutal realization on New Year's Eve for Big Apple law firm associates is this: You chose this career path. You knew it would entail a monk-like existence. You heard all about the serial all-nighters. So, why did you take this road less and less traveled? And with low job security?

Your New Year's resolution can be to deconstruct that decision-making process. Was it that you were willing to trade off a life of some pleasure in order to pursue intellectual excellence, earn $160,000 your first year, possibly receive a nice bonus, and have a shot at partnership?

Well, there are myriad other intellectually stimulating, well-paid including bonuses career paths which actually enable a wonderful life. In the book "Lost on treasure island," former GQ editor Steve Friedman chronicles the perks of his glam job. Here you can order the book from Amazon.

Those include being able to pitch to the powers that be a piece on spiritual retreats in far-off places, get to go there on their dime, participate, lose 30 pounds and double-digit bad cholestrol points, and pick up the long-legged babes who are also searching. Or, he can pitch bellying up with the working class types at fishing holes, observe, and connect the dots for a 1200-word story.

To get coverage in GQ, all kinds of beautiful women and interesting men throw products, services and hospitality his way.

He has a byline which his enemies, friends, family and former/current lovers read.

And, all the while he recognizes that when he tires of this part of the glam media scene, which he eventually does, he can go on with his pleasure-filled life in Manhattan as a freelancer. Unlike being a contract document reviewer his free agent existence takes him to places where there are endlessly fascinating things to see and people to meet. He comes to specialize in writing about travel and sports. That's lots different than deep dives about intellectual property.

As he admits in the memoir his sad-sack disposition is 100-percent his fault. It has nothing to do with the city, the glam, the work or even the amount of money he earns. Because of his own tragic flaws he can't find a Mrs. Friedman, inner peace or the willingness to accept people as they are.

Part of this darkness may be associated with his addictive personality. Lawyers probably can identify. Friedman did time in rehab while still a Midwestern hick. When the pain became bad enough eventually he began attending 12-step meetings in Manhattan. Those help. But readers are not optimisitc that Friedman can hold onto to the insights he gains.

However, meanwhile his career path brings unique experiences in far-off places, all the babes he could desire, a byline, and enough money. He can decide whether or not to feel less-than the hedge fund types and trust fund babies he plays basketball with. Usually he can blow that particular kind of negativity away.

Tomorrow night, we who are not living the professional life of Steve Friedman have to ask: Why not? And what can be do to add more pleasure to our work?

December 26, 2014

'Tis the weekend for compulsive movie-going or binge-watching of episodes of "Breaking Bad." Lawyers who opt for the film "Whiplash"at indie theatres will receive an upbeat takeaway message. And that's they can succeed, despite their destructive drive and sadistic superiors.

Essentially, the plot tracks an over-the-top ambitious jazz student whose mother abandoned him and his father. The latter started out a writer but defaulted to teaching high school. Of course, the surrounding factors are accelerators to an already scary drive. During the process of going for it the boy Andrew Neiman even drops his lovely girlfriend.

As usual, there is a key obstacle. That's the malevolent presence of the conductor of a prestigious in-house jazz band Terence Fletcher. No ordinary villain, Terence is complex in his values and Machiavellianisms. So much so that he might be clueless about who he really is. At the end of the film, we don't know if he feels check-mated or is pleased that the boy outwits him and overcomes his own worst self.

Well, as frequently happens in a tale of chasing the gold, Andrew cracks up. That's after another former student hangs himself. Of course, when this is brought to the school's attention, Terence gets canned. But he is not finished having fun with Andrew, especially since he knows Andrew was the one who testified against him. Those statements were supposed to be confidential. As lawyers know, they so rarely are.

Yet, it's Andrew's talent which saves it all. He manages to play his way passionately out of a very public trap set by Terence. Likely the unconditional love of his father provides the centering he needs to pull that off. Unlike the son, the father isn't wounded.

Since the event in which he plays like a genius is prestigious, he will probably be noticed by those in jazz who can open doors. He no longer needs Terence. And in the future he will know how to handle other kinds of evil creatures.

Reflection: One's inner darkness and the forces of outer darkness don't have to do in a lawyer determined to make it big. He or she can do just that. What would help is to have the unconditional love of another human being. One who is solid.

October 23, 2014

Ever since both the major gender discrimination lawsuit "Dukes v. Wal-Mart" and its micro versions bit the dust, there hasn't been much optimism about being able to certify a class action suit. That might change with "Chen-Oster V. Goldman Sachs & Co."

First filed in 2010 by two Goldman Sachs Group female employees, it alleges a "culture of discrimination" and a "boys club" ethos. This could become known as the Strip Club Lawsuit. The plaintiffs claim discrimination on pay and promotions. Liberal groups could rally around this just as they did with "Dukes v. Wal-Mart."

Yesterday and today U.S. Magistrate Judge James C. Francis is hearing arguments from both sides. On the basis of those he will decide whether to certify the lawsuit as a class action one. As Bob Van Voris reports in Bloomberg:

"Chen-Oster and Orlich are seeking an order permitting them to represent all women associates and vice presidents who worked in the firm's investment banking, investment management and securities divisions since 2004 and in New York since 2002."

The pragmatic problem with the "boy's club" antics like recreating in alleged strip clubs is that they shut females out of networking. Everything is contacts. And contacts are made socializing in an industry that plays as hard as it works. In addition, when part of an "animal house" night at the strip club you can get dirt on a colleague. That makes that colleague "owe you." Power and influence get piled up in many many ways. Knowing who did what when is one of them.

September 18, 2014

From the get-go, lawyers and communications experts knew the legal pickle Anthony Elonis of Pennsylvania was in would have profound implications. For law, the Internet, and hyperbolic communications.

Long story short, using rap lyrics, Elonis posted on Facebook what some interpreted as threats of violence against them. Those ranged from his estranged wife to a FBI agent.

A federal jury convicted him. Essentially the charges were that he violated a federal law about communicating threats across state lines. He has already served three years of his 44-month sentence.

The legal questions, embedded in free speech, involve: Should intentionality be factored into a judgment about communication on the Internet and/or is it adequate to recognize that reasonable people felt threatened. The jury instructions in the original Elonis trial defined a "true threat," not protected by the First Amendment, as speech which reasonable people would interpret as portending harm.

In December the U.S. Supreme Court will be reviewing this case, now framed as "Elonis v. United States." As Dahlia Lithwick explains on Slate, the justices will have to bone up on a lot of material in which they probably have little expertise. That ranges from the role of Facebook in informal communications in current society to the ethos of rap music. Here is her article.

If SCOTUS confirms the lower court's jury decision, then those in habit of ranting negatively in public about other people in a threatening way will know that is not considered their right under the First Amendment. They could be arrested. If the rant was posted in social media, which is national therefore entails federal law, they could be charged with federal crimes, just as Elonis had been.

If Elonis gets off the hook, then it will be a free-for-all verbally on the Internet. The creative among us could position and package our threats as what could eventually wind up in winners of contests. Those competitions could be launched post-Elonis win to raise the bar on how we can do in our enemies. A good time could be ahead for those who didn't fare too well in anger management courses.

August 22, 2014

What's in the Baby Boomer memory bank might still hover over parole decisions.

The Mason Girls have had not had success being released. And, today we learn that John Lennon's murderer Mark David Chapman didn't either. This, as Bloomberg reports, is the eighth time he was turned down. Here is the coverage.

People can and do change. Often that happens naturally with aging as well as reflection in the confined quarters of prisons. What we read about the Mason Girls, they have at least matured enough and maybe suffered enough to recognize that their murders were wrong.

But don't bet on anyone of these celebrity convicts from Baby Boomer times ever receiving early release. We won't allow that. We can't. Collectively, they stole our innocence.

August 14, 2014

The academic institution which might have been his next employer - University of Illinois at Champaign-Urbana - is tight-lipped. So, is Steven Salaita, a former professor of indigenous studies at Virginia Tech. That's a shift in MO for a man who habitually tweeted provocative anti-Israel commentary.

Those tweets might be the core reason why he was not being approved by IL's chancellor and vice president of academic affairs for the tenured position. Essentially, he seemed to assume the approval was a rubber-stamp process and resigned his previous job. Since the two key parties aren't talking, maybe the reasons for the rejection will never be made public.

That makes the issues embedded in this development all the more buzz-worthy. They range from academic freedom of expression to the judgment of a possible employeee whose words could incite violence. In The Wall Street Journal, Douglas Belkin presents the story as if the tweets were the cause for the lack of an offer.

The headline reads "Tweets on Israel Cost Professor a New Job"

The subhead reads "Inflammatory Comments Prompt University of Illinois to Rescind Offer"

July 22, 2014

Singer Lana Del Rey contends that she didn't sleep her way to the top. In the New York Post, Bryan Hood quotes her as saying, "You know, I have slept with a lot of guys in the industry, but none of them helped me get my record deals. Which is annoying." Here you can read the NYP coverage.

Since Del Rey is not a lawyer she may not be able to discern if she and her sex partners had entered into any kind of contract, which then was breached. Also, she may have evidence of contracts being made and not being aware of it.

If it turns out contract law had been violated and matters are brought to trial, those on the jury could have the experience of their lives.